The parties to this agreement are Columbia Pictures
Industries, Inc., a Delaware corporation ("CPII"), and Delphi
Film Associates III, a New York limited partnership (the
"Seller"). CPII and the Seller are joint venturers in Columbia-
Delphi III Productions, a joint venture organized under New York
law (the "Joint Venture") pursuant to a Joint Venture Agreement
dated as of January 13, 1984, as amended (the "Joint Venture
Agreement"). CPII desires to purchase (in such capacity, the
"Purchaser") from the Seller, and the Seller desires to sell to
CPII all of Seller's right, title and interest in and to the
Interest (as hereinafter defined), subject to the terms and
provisions of this Agreement.
It is therefore agreed as follows:
0.Xxxx.
For and in consideration of the Purchase Price (as
hereinafter defined) and upon the execution and delivery of this
Agreement by CPII, the Seller does hereby sell, transfer, set
over and assign to CPII all of the Seller's right, title and
ownership interest in and to the Films set forth on Schedule 1
hereto (collectively, the "Films"), all of which are owned
through the Joint Venture, and the Seller's interests in the
Joint Venture (hereinafter referred to collectively as the
"Interest"). Concurrently with the execution and delivery of
this Agreement by CPII and the Seller, the Seller shall execute
and deliver to CPII (a) an Assignment of Joint Venture Interest
with respect to its interest in the Joint Venture in the form of
Exhibit A attached hereto, and (b) as a joint venturer in the
Joint Venture, a Xxxx of Sale and a Copyright Assignment in the
forms of Exhibit B and Exhibit C, respectively, attached hereto.
2. Termination of Distribution Agreements.
Effective as of the date hereof upon payment by CPII
and receipt by the Seller of the Purchase Price (as hereinafter
defined), the Distribution Agreement dated as of January 13,
1984 (such agreement, as amended, being the "Distribution
Agreement") between CPII and the Joint Venture, relating to the
Films shall automatically terminate without any further action on
the part of either party hereto or the Joint Venture.
Notwithstanding the foregoing, the provisions of Article XXI of
the Distribution Agreement shall survive such termination.
3. Termination of Joint Venture.
Effective as of the date hereof upon payment by CPII
and receipt by the Seller of the Purchase Price (as hereinafter
defined) and the delivery of the Assignment of Joint Venture
Interest in the form of Exhibit A attached hereto, without any
further action by the parties, the Joint Venture shall terminate
and all right, title and interest in and to the assets of the
Joint Venture and all obligations (other than obligations
incurred by Seller on behalf of the Joint Venture outside of the
scope of Seller's authority) of the Joint Venture shall inure to
CPII as successor in interest.
4.Purchase Price.
Within two business days of the execution and delivery
of this Agreement by CPII and the Seller, CPII shall pay to the
Seller, as the purchase price for the Interest, $800,000 (the
"Purchase Price"), which shall be paid, without deduction or
setoff, by wire transfer of immediately available funds to the
account of the Seller as set forth on Schedule 2 hereto. The
parties hereto acknowledge and agree that, subject to the terms
of this Agreement, (i) the Purchase Price constitutes full
satisfaction and settlement for the purchase of the Interest and,
in addition, of any and all amounts payable by CPII to the Seller
or the Joint Venture, and any amounts payable by Seller to CPII
or the Joint Venture, in each case with respect to the
distribution and exploitation of the Films under the terms of the
Joint Venture Agreement, the Distribution Agreement and the other
agreements and instruments entered into in connection with the
production, distribution and exploitation of the Films as
contemplated by the Seller's Prospectus dated January 30, 1984,
as such agreements as amended, supplemented or modified have been
entered into (the "Subject Agreements"), and (ii) upon receipt of
the Purchase Price by the Seller, CPII shall have no further
liability or obligation to the Seller and Seller shall have no
further liability or obligation to CPII or the Joint Venture for
the purchase of the Interest or the Films, or for payments
arising under the Subject Agreements with respect to the
distribution and exploitation of the Films, except that
notwithstanding the foregoing, the indemnities in the Subject
Agreements set forth in Schedule 3 hereto shall survive.
5.Representations and Warranties of the Seller.
The Seller represents and warrants to CPII that (a) the
Seller is the owner of the Interest free and clear of all
mortgages, pledges, liens, security interests and other
encumbrances of any nature whatsoever; (b) the Seller has not
assigned or transferred to any other person, firm, corporation,
trust or other entity in any manner, including by way of
subrogation or operation of law or otherwise, all or any portion
of any claim, demand, right (including a right to receive any
payment, whether in respect of a participation interest or
otherwise), action or cause of action that it had, has or might
have arising under or in respect of the Interest, the Films, the
Subject Agreements or the business or operations of the Joint
Venture; and (c) to the best of Seller's knowledge, no
litigation, investigation or administrative proceeding of or
before any court, arbitrator or governmental authority is pending
or threatened against the Joint Venture, Seller or the Seller's
general partner, under or in connection with the Interest, the
Joint Venture, the Subject Agreements, the business or operations
of the Joint Venture or the transactions contemplated hereby.
6.Representations and Warranties of CPII.
CPII hereby represents and warrants to the Seller that
no material books or records of CPII or its affiliates related to
the computation of costs of the Films or Seller's share of the
revenues derived from the exhibition, distribution and other
exploitation of the Films have been withheld by CPII from Seller
or any agent or representative of Seller (including without
limitation, Xxxxxx Management Corporation) with respect to the
distribution and production audits heretofore performed by or on
behalf of the Seller. Seller acknowledges that it has been given
the opportunity to audit the books and records of CPII and its
affiliates related to the production and distribution of the
Films and agrees that unless Seller has a reasonable basis to
believe that the foregoing representation is untrue, Seller shall
have no further right to audit any such books or records. The
Seller represents and warrants to CPII that neither the Seller
nor any of its directors, officers, employees, affiliates, agents
or representatives (including, without limitation, Xxxxxx
Management Corporation) is presently aware of any breach of the
foregoing representation and warranty of CPII.
7.Additional Representations and Warranties of the
Parties.
Each of CPII and the Seller represents and warrants to
the other that (a) it has the right, power and authority to
execute, deliver and perform this Agreement; (b) this Agreement
and each other agreement entered into in connection herewith to
which it is a party have been duly and validly authorized,
executed and delivered by it and each such agreement constitutes
its legal, valid and binding obligation, enforceable against it
in accordance with its terms, except as such rights may be
limited by bankruptcy, insolvency and other laws affecting
creditors' rights generally and by equitable principles; (c) no
consent by any third party (including, without limitation, in the
case of the Seller, the limited partners of the Seller) is
required in connection with its execution, delivery and
performance of this Agreement and such agreements referred to in
clause (b) above; (d) it has made its own business determination
and judgment regarding the purchase and sale of the Interest for
the Purchase Price pursuant to this Agreement and that it is not
relying upon any representation or warranty by the other party in
connection therewith or otherwise with respect to the Interest or
the Films, except as expressly set forth herein; and (e) to the
best of its knowledge, no litigation, investigation or
administrative proceeding of or before any court, arbitrator or
governmental authority is pending or threatned with respect to
the production of any of the Films which is likely to result in
any liability or damages to the other.
8.Further Assurances.
(a) The Seller agrees, after the date hereof, to
take all further actions which are reasonably requested by CPII
in connection with the sale and transfer of the Interest to CPII
to carry out the terms of this Agreement; provided that the
Seller shall not be required to incur any out-of-pocket cost or
expense in connection with any such action unless CPII agrees to
reimburse the Seller for such cost or expense.
(b) CPII agrees, after the date hereof, to take
all actions (i) necessary or appropriate for CPII as purchaser or
for the Joint Venture or CPII as a joint venturer in the Joint
Venture to evidence the transactions effected hereby, including,
without limitation, any filings with governmental authorities,
and to bear the costs of any such actions or (ii) reasonably
requested by Seller in connection with the sale and transfer
effected by this Agreement, at the cost and expense of Seller;
provided that the foregoing shall in no event impose on CPII any
obligations or liabilities under the federal or state securities
laws with respect to filings thereunder required to be made by
Seller.
9.Records.
For a period of seven (7) years following the date of
this Agreement, each of CPII and the Seller agree for the benefit
of the other, upon reasonable prior notice and during regular
business hours, to make its business records relating to the
Interest and the Films, and those business records, if any, in
its possession relating to the 1986 limited partner consent
solicitation and subsequent reorganization of the Seller,
available to the other (subject to any applicable confidentiality
obligations to which either party may be subject) for purposes of
any tax audit and/or litigation.
10.Indemnification.
(a) Each party (for purposes of this Section 10
each an "Indemnifying Party") shall indemnify and hold harmless
the other party and its respective subsidiaries, affiliates,
shareholders, partners and agents (including but not limited to
Xxxxxx Management Corporation) and the respective shareholders,
partners, officers, directors and employees of each of them (each
an "Indemnified Party") against any and all claims, damages,
judgements, losses, costs, expenses (including, without
limitation, reasonable attorneys' fees and disbursements incurred
in connection with investigating, preparing to defend or
defending against any action, suit or proceeding threatened or
commenced), penalties and liabilities of any kind or nature
whatsoever which may be sustained or suffered by any such
Indemnified Party directly or indirectly, relating to or arising
out of, a breach of any of the covenants, agreements,
representations or warranties contained in this Agreement by such
Indemnifying Party or in any certificate or other document
executed and delivered by such Indemnifying Party pursuant to
this Agreement or at the closing of the sale transaction
contemplated by this Agreement.
(b) All rights and remedies conferred by this
Agreement to an Indemnified Party shall be cumulative and shall
not interfere with or prevent the exercise of any other right or
remedy which may be available to such Indemnified Party hereunder
or otherwise under law or in equity. Any Indemnified Party shall
promptly notify the Indemnifying Party of any claim, demand, suit
or proceeding with respect to which it seeks indemnification
(provided that the failure to give such prompt notice shall not
affect the obligation of the Indemnifying Party unless the
failure to give the notice materially and adversely affects its
interest) and the Indemnifying Party shall at all times have the
right to defend, settle or compromise such claim, demand, suit or
proceeding with counsel of its own choosing and in such manner as
it may deem advisable; provided, however, that an Indemnifying
Party may not settle any such claim, demand, suit or proceeding
which in any way would affect the rights, interest or reputation
of an Indemnified Party without the prior written consent of such
Indemnified Party. If the Indemnifying Party shall elect to
control such defense, the Indemnified Party shall have the right
to engage separate counsel of its choice and participate in the
defense, negotiation or settlement of such action or proceeding
but shall bear the fees and expenses of such separate counsel
retained by it and the Indemnified Party shall cooperate in the
defense of any such claim, demand, action or other proceeding at
no cost or charge to the Indemnifying Party other than for the
other party's reasonable out-of-pocket expenses for performing
such acts as the Indemnifying Party shall request. If the
Indemnifying Party shall fail to appoint counsel on a timely
basis and undertake such defense, the Indemnified Party may
engage its own counsel, and the reasonable charges made in
connection therewith shall be paid by the Indemnifying Party.
The parties' rights, powers and remedies set forth herein shall
be in addition to, and not in lieu of, any rights, powers and
remedies hereunder at law or in equity, by statute or otherwise.
11.Location of Transfer.
The parties agree that the transfer of the Interest
shall occur in California.
12.Revocation of Empowerment to Appear in Suits.
The parties agree that to the extent that CPII
heretofore empowered the Seller to bring, prosecute, defend and
appear in suits, actions and proceedings of any nature under or
concerning all copyrights in the Films and all renewals of these
copyrights, or concerning any infringement of any of these
copyrights or renewals, or interference with any of the rights
granted under these copyrights or renewals, such empowerment is
hereby revoked and terminated effective immediately.
13.Miscellaneous.
(a) This Agreement shall be governed by and construed
in accordance with the laws of the State of New York applicable
to agreements made and to be performed in that State, and may not
be amended, changed or terminated, except by an instrument in
writing signed by each of the parties hereto.
(b) All communications under this Agreement shall be
in writing and shall be deemed to have been duly given when
delivered personally or sent by overnight courier or mailed by
certified or registered first class mail, postage prepaid, return
receipt requested, to the party to whom the same is directed (or
to such other address as a party may have specified by written
notice to the other party):
If to the Seller, to it at:
Delphi Film Associates III
World Financial Center
Xxxxx Xxxxx -00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxx X. Xxxxxx
with a copy to:
Xxxxxx Management Corporation
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxx
If to CPII, to it at:
Columbia Pictures Industries, Inc.
c/o Sony Pictures Entertainment Inc.
00000 Xxxx Xxxxxxxxxx Xxxxxxxxx
Xxxxxx Xxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxxx
General Counsel
with a copy to:
Columbia Pictures Industries, Inc.
c/o Sony Pictures Entertainment Inc.
00000 Xxxx Xxxxxxxxxx Xxxxxxxxx
Xxxxxx Xxxx, XX 00000-0000
Attention: Xxxxx X. Xxxxxxx, Xx.
Chief Financial Officer
(c) This Agreement is being entered into by Seller
in its individual capacity and, as to Section 3 hereof, as a
joint venturer in the Joint Venture. This Agreement is being
entered into by CPII in its individual capacity, as Purchaser,
and, as to Section 2 hereof as a party to the Distribution
Agreement and as a joint venturer in the Joint Venture, and as to
Section 3 hereof, as a joint venturer in the Joint Venture. This
Agreement is further entered into by Seller and CPII, as to
Section 4 in their respective capacities as parties to or
beneficiaries of interests in the Subject Agreements.
(d) This Agreement together with the Exhibits and
Schedules attached hereto sets forth the entire agreement and
understanding between the parties with respect to the subject
matter hereof and supersedes all prior agreements and
understandings with respect to such subject matter (whether
written or oral) all of which are merged herein.
(e) This Agreement may be entered into in one or
more counterparts, each of which together shall constitute one
agreement.
DELPHI FILM ASSOCIATES III
By: The Delphi Group
General Partner
By: ML Film Entertainment Inc.
Managing Partner
By: /s/ Xxxxxx X. Xxxxxxxxxx
Name: Xxxxxx X. Xxxxxxxxxx
Title: Vice President
COLUMBIA PICTURES INDUSTRIES, INC.
By: /s/ Xxxxx X. Xxxxxxx,
Xx.
Name: Xxxxx X. Xxxxxxx, Xx.
Title: Executive Vice
President
SCHEDULE 1
PURCHASE AND SALE AGREEMENT
SCHEDULE OF FILMS
Hardbodies
Xxxxx & Xxxxx
Fast Forward
Perfect
The Bride
Big Trouble
The Karate Kid: Part II
SCHEDULE 2
FUNDING INSTRUCTIONS
Amounts payable to Delphi Film Associates III (the "Seller")
pursuant to the Purchase and Sale Agreement dated as of December
20, 1996 between the Seller and Columbia Pictures Industries,
Inc. shall be paid to the account of the Seller, as follows:
Delphi Film Associates III
Chase Manhattan Bank, NY, NY
ABA#: 000000000
Receipts Account
#004063147
SCHEDULE 3
SCHEDULE OF INDEMNIFICATION PROVISIONS
- Joint Venture Agreement as of January 13, 1984 between
Columbia Pictures Industries, Inc. ("CPII") and Delphi Film
Associates III ("Delphi")(Sections 24 and 27).
- Distribution Agreement as of January 13, 1984 between CPII
and Columbia-Delphi III Productions (Article XXI).
- Production Origination Agreement dated as of January 13,
1984 between Columbia-Delphi III Productions and CPII
(Section 8).
- Letter Agreement dated February 23, 1988 between Columbia
Pictures Entertainment, Inc. and Delphi Film Associates III.
EXHIBIT A
ASSIGNMENT OF JOINT VENTURE INTEREST
KNOW THAT Delphi Film Associates III ("Assignor"), for good
and valuable consideration received from Columbia Pictures
Industries, Inc. ("Assignee"), hereby assigns to Assignee all of
its right, title and interest in Columbia-Delphi III Productions
(a New York joint venture) (the "Joint Venture") from and after
the date hereof (the "Interest").
TO HAVE AND TO HOLD the same unto Assignee and to the
successors and assigns of Assignee forever.
By accepting this Assignment, Assignee hereby assumes all
obligations associated with the Interest, whether arising prior
to, on, or after the date hereof (other than obligations incurred
by Assignor on behalf of the Joint Venture outside of the scope
of Assignor's authority).
IN WITNESS WHEREOF, Assignor has executed this Assignment as
of the __ day of December, 1996.
DELPHI FILM ASSOCIATES III
By: The Delphi Group,
General Partner
By: ML Film Entertainment Inc.,
Managing Partner
By:
Name:
Title:
Accepted as of the date
first above written
COLUMBIA PICTURES INDUSTRIES, INC.
By:
Name:
Title:
EXHIBIT B
XXXX OF SALE
For and in consideration of the sum of One Dollar ($1.00)
and other good and valuable consideration paid simultaneously
herewith by COLUMBIA PICTURES INDUSTRIES, INC., a Delaware
corporation ("CPII"), to COLUMBIA-DELPHI III PRODUCTIONS (the
"Seller"), a joint venture organized under New York law between
CPII and Delphi Film Associates III ("Delphi"), receipt of which
the Seller hereby acknowledges, the Seller hereby sells, assigns,
transfers, delivers and sets over to CPII all of the Seller's
right, title and interest in and to the feature-length theatrical
motion pictures set forth on Schedule 1 attached hereto (the
"Films"), including, without limitation: (i) all common law and
statutory copyrights the Seller owns therein (and all renewals
and extensions thereof) throughout the world, (ii) all preprint
materials and copies thereof, (iii) such rights in the music and
literary property rights relating to the Films and/or on which
Films are based, including without limitation, rights in the
screenplay and the underlying literary rights on which the
screenplay was based, as may have been necessary to permit the
exploitation of the Films in all media for which the Seller has
rights, to the full extent of those rights, (iv) the right to
cause the Films to be exhibited, distributed, marketed and
exploited in all media in all territories in which the Seller has
rights, to the full extent of those rights and (v) all positive
and negative film of the Films, wherever located.
Without limiting the generality of the foregoing, the rights
sold, assigned, transferred and delivered to CPII include the
following rights in and to the Films to the extent the Seller
owns or controls such rights:
(a) To secure copyright registration in the Films in
CPII's own name anywhere in the world to the extent of the
interest herein conveyed, and to secure any renewals and
extensions thereof wherever and whenever permitted;
(b) To produce, issue and make negatives and positive
prints of the Films and trailers thereof;
(c) To use the titles of the Films and the right to
change such titles;
(d) To distribute, exhibit, transmit, project, perform,
reissue, subdistribute, sublicense, lease, rent, exploit, turn to
account, dispose of and generally deal in and with the Films, and
trailers thereof, and excerpts and clips therefrom, in any and
all languages (including dubbed, titled and narrated versions) in
all sizes and gauges of film and other materials and for any and
all purposes and uses, including, without limitation, theatrical
purposes of any and all kinds, non-theatrical purposes of all
kinds, and television in all forms, by every means, method,
process, medium or device now or hereafter known, invented,
contemplated or devised, subject, however, to the limitations
imposed by any applicable contracts for the use of literary,
dramatic or musical material;
(e) To publish, or cause or permit to be published, in
any languages and forms, synopses, summaries, resumes and stories
of and excerpts from the Films and any literary, dramatic or
musical material included in the Films or upon which the Films
are based, in newspapers, magazines, trade periodicals, heralds,
programs, booklets, posters, lobby displays, press books and any
other periodicals and in all other media of advertising and
publicity whatsoever, subject, however, to the limitations
imposed by any applicable contracts and guild agreements for the
use of literary, dramatic or musical material;
(f) To broadcast or transmit by radio, wire, television
or any other means or method, or license or authorize others to
so broadcast or transmit, in any language, adaptations, versions
or sketches of the Films, or any parts or portions thereof, from
audio or audiovisual works or with living persons, or otherwise;
and in connection therewith, to use parts of, or excerpts from,
or the theme of any literary, dramatic or musical material
contained in the Films or upon which the Films are based, and to
use in conjunction therewith any other literary, dramatic or
musical material, subject, however, to the limitations imposed by
any applicable contracts and guild agreements for the use of such
materials;
(g) To use the name and reproductions of the physical
likeness and voice of any party rendering services in connection
with the Films for the purposes of advertising or exploiting the
Films, including any product, commodity or service manufactured,
distributed or offered by any person, firm or corporation,
subject, however, to the limitations imposed by any applicable
contracts of employment and guild agreements;
(h) To publish, market and exploit all music and lyrics
composed or written for the Films and synchronized with it as
released, subject, however, to the limitations imposed by any
applicable contracts and guild agreements for the use of such
materials;
(i) To use, or license the use of, all or any part of
the sound recordings, musical scores and individual parts made
for or used in connection with the Films for the purpose of
producing or reproducing phonograph, tape, wire or other
recordings of any kind, whether in albums, single records,
cartridges, cassettes, tapes or otherwise, and whether or not
designated for sale to the public, for electrical transcription
for advertising purposes or for any other purpose, subject,
however, to the limitations imposed by any applicable contracts
and guild agreements for the use of such material;
(j) To use, exercise, employ, exploit and merchandise
all of the characters, situations, objects, properties, wardrobe,
designs, equipment and events depicted, described or portrayed in
the Films, the actors appearing therein and the logos and artwork
therefrom, subject, however, to the limitations imposed by any
applicable contracts for the use thereof and guild agreements;
and
(k) To publish and distribute novelizations,
photonovels and photocomic books of the Films and printed
versions of the literary material on which the Films are based in
book form and in magazines, newspapers and other periodicals,
whether in installments or otherwise, subject, however, to the
limitations imposed by any applicable contracts and guild
agreements for the use of such material.
This Xxxx of Sale is being delivered pursuant to the terms
of the Purchase and Sale Agreement dated as of December 20, 1996,
between CPII and Delphi.
IN WITNESS WHEREOF, the Seller has caused this Xxxx of Sale to be
executed by its duly authorized officer as of this ___ day of
December, 1996.
COLUMBIA-DELPHI III PRODUCTIONS
By: DELPHI FILM ASSOCIATES III,
a Joint Venturer
By: The Delphi Group,
General Partner
By: ML Film Entertainment Inc.,
Managing Partner
By:
Name:
Title:
By: COLUMBIA PICTURES INDUSTRIES, INC.,
a Joint Venturer
By:
Name:
Title:
EXHIBIT C
COPYRIGHT ASSIGNMENT
The undersigned hereby sells, assigns and transfers to
COLUMBIA PICTURES INDUSTRIES, INC., a Delaware corporation, and
its successors and assigns (the "Assignee"), all of its right,
title and interest in and to the motion pictures set forth on
Schedule 1 attached hereto (collectively, the "Films"), and all
copyrights therein (including, without limitation, all copy-
rights in the Films registered in the United States Copyright
Office).
The undersigned hereby irrevocably appoints the Assignee as
its attorney-in-fact, with full and irrevocable power and
authority to do all acts and things, and to execute, acknowledge,
deliver, file, register and record all documents, in the name and
on behalf of the undersigned, as Assignee may deem necessary or
proper to accomplish the purpose of this Copyright Assignment.
Dated this __ day of December, 1996.
COLUMBIA-DELPHI III PRODUCTIONS
By: DELPHI FILM ASSOCIATES III,
a Joint Venturer
By: The Delphi Group,
General Partner
By: ML Film Entertainment Inc.,
Managing Partner
By:
Name:
Title:
By: COLUMBIA PICTURES
INDUSTRIES, INC.,
a Joint Venturer
By:
Name:
Title:
X-0
XXXXX XX XXX XXXX )
)
)ss.:
)
COUNTY OF NEW YORK )
On this __ day of December, 1996, before me personally came
_______________ to me personally known and who, being by me duly
sworn, did depose and say that he is the ___________ of ML FILM
ENTERTAINMENT INC., the managing partner of the general partner
of DELPHI FILM ASSOCIATES III, a joint venturer in COLUMBIA-
DELPHI III PRODUCTIONS, the joint venture described herein and
which executed the foregoing instrument, and that he signed his
name thereto.
Notary Public
X-0
XXXXX XX XXXXXXXXXX )
)
)ss.:
)
COUNTY OF )
On this __ day of December, 1996, before me personally came
_______________ to me personally known and who, being by me duly
sworn, did depose and say that he is the ___________ of COLUMBIA
PICTURES INDUSTRIES, INC., a joint venturer in COLUMBIA-DELPHI
III PRODUCTIONS, the joint venture described herein and which
executed the foregoing instrument, and that he signed his name
thereto.
Notary Public
